Riggs v. Higgins

*5 COLLET, J. -This case comes to the writer on reassignment. Respondent, plaintiff below, brought this action against S. M. Higgins and the Metropolitan Life Insurance Company to recover damages for the death of her husband, alleged to have been caused by the negligence of Higgins. Respondent obtained a judgment for $10,000 against both defendants. The Metropolitan Life Insurance Company appealed. Higgins was employed by appellant as its agent. His duties were to make collections of insurance premiums due the company and to solicit policies of insurance. That work was confined to a definite, assigned territory consisting of a part of the city of Neosho and some outlying contiguous territory. Higgins owned an automobile which he used in going from place to place within'his territory in the discharge of his duties. Appellant had an established custom of calling all of its agents in the so-called Joplin district in to Joplin for instructions. These meetings were held almost every week. Notices of these meetings were given the agents in advance and they were expected to attend. Higgins was notified that such a meeting was to be held at Joplin on the morning of December 5, 1931. Joplin was not in the territory assigned to Higgins but the latter territory was within the Joplin district. On the morning of December 5, 1931, Higgins and his wife and daughter left Neosho in Higgins’ automobile. Higgins intended to attend the meeting at Joplin that morning. His wife and daughter were to go on to Webb City in the automobile to visit and later in the day return to Joplin, meet Higgins and all three return to Neosho. On the way to Joplin Higgins’ automobile struck respondent’s husband, inflicting injuries from which he died. Higgins *6 was driving the automobile. The circumstances surrounding the accident need not he related since appellant concedes for the purposes of this appeal, that there was evidence that Higgins negligently operated his automobile and thereby struck and killed respondent’s husband and that the latter was free from negligence. The facts incident to the relationship between Higgins and appellant are stated in appellant’s brief as follows: ‘ ‘ The primary question is the relation between Higgins, the driver of his car, and the appellant, on the former’s journey from Neosho to Joplin and at the time and place of the accident. All the evidence as to this, as well as Higgins’ general relation to appellant, comes from two witnesses, viz.: Darnell, a witness for plaintiff, and Higgins, a defendant. There is no conflict in their testimony. Bach was an agent of appellant, assigned to specific territory in Newton County. Their duties were to go over their respective territories and there to collect premiums payable weekly or monthly as they became due and there to try to sell insurance. They deposited their collections in a Neosho bank, to the credit of the manager of the Joplin office, and a duplicate deposit slip was sent to that office. The agents were paid on a commission basis. The territory given Higgins was a part of Neosho and along the highway to Seneca on the west and the highway to Goodman to the south. He could not work in any other territory. When he took an application for insurance he had the application signed, and it was his duty to get it to the Joplin office either by mail, by the manager or assistant manager when he was in Neosho, as they were frequently, or in. person, as he might determine. Higgins reported to the Joplin office by mail about every day and so received instructions from that office. “When Higgins was employed he had a ear; it was necessary for him to use it in making his trips over his territory and this he did. The manager knew he did this, and knew Higgins had the car when he was employed. Appellant did not pay Higgins anything for the use of the car; it belonged to Higgins, was registered in his name and he bought the license; • he kept up the expense of the car and appellant did not have anything to do with any of these matters. “At irregular periods, but once every week or two weeks, there was a meeting in Joplin of all the agents working under that office, Higgins being one thereof. Notice of the meeting would be given to each agent and he was expected to attend. At these meetings they would do a little detail work possibly in the morning and hold pep meetings and give out instructions about the work. “Darnell testified that employees like himself and Higgins worked except on these meeting days. The employees who attended the meetings came by any way, over any route and by any sort of conveyance; the only requirement of appellant was that each got there *7 by his own way or method. The appellant had no control over the agent’s car when working his territory except the agent had to get over his territory: Appellant paid a commission to such employees, and the employee decided his own way of getting about; all that was necessary was that he get around to see the people in his territory on the days their payments fell due. On meeting days the agent simply reported there at the designated time. Appellant did not exercise any control except to give the notice of the meeting. The agent did not have any business for appellant until he reached the meeting. ’ ’ Higgins also testified as follows: “I always drove up to these meetings in my car and I supposed the people in the Joplin office knew it. As far as I knew the car was the only practical way to get there that time in the morning.” Ralph E. Darnell, a witness for plaintiff, gave the following testimony : £ 1 .• . . When it is decided to have a meeting a notice is given to the men that there will be a meeting at a certain time and place; the employees who attend that meeting will come to it in any way, by any route or by any sort of conveyance; the only requirement of the company is that they get to the place of the meeting. The company doesn’t care whether the man starts the night before and comes up and stays in Joplin, or goes to Webb City and stays; the only requirement is that he get there to attend the meeting by his own way or method.” It is readily apparent that Higgins was in the general employ of appellant in the sense that a railroad conductor or street railway motormen are throughout their day’s work, but to settle liability upon the employer ati express or implied direction to the employee to do the thing resulting in the injury must have been given, or, if that be lacking, and facts appear which show an express or implied reservation of the right to control the employee’s actions as to the mode or method of discharging his duties, the employer will be liable although the employee may disobey orders and adopt a mode or method prohibited.' [Hilsdorf v. City of St. Louis, 45 Mo. 94; Smothers v. Furnishing Co., 310 Mo. 144, 274 S. W. 678.] The same logic which prompts the statement that “it is not the fact of actual interference with control, but the right to interfere that marks the difference between an independent contractor and an agent or servant” (Aubuchon v. Security Const. Co. (Mo. App.), 291 S. W. l. c. 189), applies in determining whether an agent or servant is acting within the terms or scope of his employment in the commission of a particular act which results in injury to others. In the present action the facts wholly fail to show any specific or implied direction to Higgins to go to Joplin by automobile unless mere knowledge on the part of appellant’s officers of the fact that *8 Higgins owned an automobile and frequently used it in going to these meetings is sufficient to warrant a finding that appellant directed this particular mode of travel. But proof of mere knowledge on the part of the employer that the employee had used his car for this purpose is not sufficient. Neither was it shown that it was necessary to the discharge of the direction given that he use this particular mode of travel. Therefore we may proceed to the determination of the question of whether appellant reserved the right to control the manner in which Higgins’ duty to get.to Joplin'was to be performed. A great many authorities are cited from this and other jurisdictions which the parties construe as supporting their opposing contentions, but we find no better statement of the general rule than the following expression of this court in the early case of Hilsdorf v. City of St. Louis, 45 Mo. l. c. 98: “The rule that prescribes the responsibility of principals, whether private'persons or corporations, for the acts-of others, is based upon their power of control. If the master cannot command the servant, the acts of the servants are clearly not his. He is not master, for the relation implied by that term is one of power, of command; and if a principal cannot control his agent, he is not an agent', but holds some other or additional relation. In neither ease can the maxim respondeat superior apply to them, for there is no superior to respond. ’ ’ In Semper v. The American Press, 217 Mo. App. 55, a man named Bresler was employed to deliver newspapers in bundles to dealers. He used his own motorcar and was paid a stipulated sum per trip. Negligent operation of the car resulted in injury to another for which injury suit was brought against Bresler and his employer. The employer defended upon the ground, among others, that Bresler was an independent contractor and not its agent or servant. By the terms of his employment Bresler was required to maintain and pay the expense of operating the automobile. The court held the employer’s liability for the jury because, as there stated — “it does not appear that he (Bresler) was’ entitled to discard the automobile and employ other means of conveyance and adopt other methods, in making deliveries as he might choose.” If the evidence had clearly shown that Bresler was a “free agent” in the selection of the means of transportation there would have been no necessity for leaving that question to the jury and if such had been the case we may surmise that the result reached would have been different. Hoelker v. American Press, 317 Mo. 64, 296 S. W. 1008, involved the question of whether Nowak, employed to deliver newspapers in bulk to newsboys, was the agent of the newspaper company or an independent contractor. He used a motorcycle which he owned *9 and maintained. This court en bane determined tbe case on appeal. This significant language appears in tbe opinion, l. c. 1012: “Tbe chief difference between that case and tbis one, not without materiality, lies in tbe fact that here tbe inference reasonably arises from what was said in tbe informal conversation between tbe parties that tbe means required to be used by Nowak in making bis deliveries was a motorcycle.” It is readily apparent that there tbe employer not only reserved tbe right to control tbe means which tbe.agent or servant was to adopt in discharging bis duties but actually required tbe use of tbis particular conveyance. In Margulis v. National Enameling & Stamping Co., 324 Mo. 420, 23 S. W. (2d) 1049, Division One of tbis court held that where a salesman driving’ bis own automobile from bis office to call on a customer for tbe purpose of selling tbe customer a bill of goods for tbe employer, caused an injury by tbe negligent operation of tbe automobile, the employer was liable. But in that case there was an express ratification of tbe use of tbe automobile as well as an implied direction to use it because, as Judge Frank points out, — “appellant (tbe employer) paid tbe cost of upkeep on tbe car in consideration of tbe use thereof in its service.” Again, in Aubucbon v. Security Construction Co., supra, tbe employer was held to be responsible for tbe negligent act of tbe servant for tbe.reason that the employer reserved tbe right to control the manner of doing tbe work in tbe discharge of which ap. injury was inflicted. Schmitt v. American Press (Mo. App.), 42 S. W. (2d) 969, was a case involving tbe liability óf tbe employer for an injury inflicted through tbe negligent operation of a truck owned, maintained and operated by tbe employer. At the time of tbe injury tbe truck was being used to pick up unsold newspapers for tbe employer prior to the. commencement of tbe employee’s regular day’s work. Tbe court held tbe employer liable. That part of tbe opinion ’which is significant for present purposes follows, l. c. 972: “. . . And not only was Fletcher obeyimg cm order of appellant at the time, regardless of when tbe order may have been given. . . . Consequently, we think tbe conclusion is inescapable that Fletcher, while on bis way on tbe morning in question, was at all times at a place where, in tbe performance of bis duty, be was required to be, and where appellant’s interests were being served.” Obviously, in that ease there was a specific direction as to the mode of performing tbe servant’s duty. Borgstede v. Waldbauer, 337 Mo. 1205, 88 S. W. (2d) 373, was determined by tbis court en banc. Tbe facts were: Waldbauer was employed by a grocery company as a salesman and collector of *10 accounts. He traveled in an automobile tbe negligent operation of which injured a pedestrian. Although the opinion does not definitely state whether the automobile was owned and maintained by the agent, a reference to the record discloses that it was owned and maintained by him. From the following language it appears that liability was predicated upon the employer’s knowledge of the agent’s use of the automobile, and that such knowledge was treated as sufficient to warrant the conclusion that the employer had directed the use of the automobile or had reserved the right to control the method or means of travel which the agent should' utilize and had ratified the use of the automobile. “It was shown that the company knew Waldbauer was using a car in making sales and collections. In 42 Corpus Juris, page 1128, section 900, we read: ‘Where, with the express or implied assent of the employer, an employee uses a vehicle which the employee owns in the discharge of his duties, the employer will be liable for an injury occasioned by its negligent operation by the employee while acting within the scope of his employment.’ [See, also, Brauch v. Skinner Bros. Mfg. Co., 330 Mo. 760, 51 S. W. (2d) 27.] A salesman, returning home from a journey on behalf of his master, is acting within the scope of his agency. [Teague v. Laclede-Christy, etc., Co., 331 Mo. 147, 52 S. W. (2d) 880; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S. W. (2d) 264, l. c. 271 (13, 14), 94 A. L. R. 751.] ” That the text quoted did not intend to infer that mere knowledge was sufficient to support the conclusion that the employer directed the use of the automobile or reserved the right to control the kind of conveyance to be used is made reasonably clear by the sentence following that just quoted (42 C. J., p. 1128) : . . The employer is not liable where at the time of the injury the employee is not acting within the scope of his empl'oy- ' ment, nor is he liable unless he has either expressly or impliedly, authorized the use of the vehicle, or where he is merely the hirer of the vehicle without control of the manner of its operation.” The authorities upon which the conclusion stated in the Borgstede case is based (cited in the above-quoted excerpt from the opinion) are all cases involving the construction of the special provisions of the Workmen’s Compensation Act and are not necessarily controlling in cases of this character. [See Jackson v. Euclid-Pine Investment Co., 223 Mo. App. 805, 22 S. W. (2d) 849, l. c. 851, and Stockwell v. Morris (Wyo.), 22 Pac. (2d) 189.] To the extent that the Borgstede case and the obiter in McCaughen v. Missouri Pacific Railroad Co. (Mo. App.), 274 S. W. 101, may be considered as holding that mere knowledge on the part of the employer of the use by the employee of a particular instrumentality, .is sufficient to warrant or *11 sustain, a finding that the employer directed the use of the instrumentality or reserved the right of control of the character of instrumentality to be used, these cases should be no longer followed. Many more cases are cited which need not be considered since the proper rule is sufficiently illustrated by those referred to. The evidence disclosing as it did that the employer neither directed the use of the automobile by Higgins nor reserved the right to control the manner in which Higgins should travel in going to Joplin, the judgment against the employer should be reversed. The only appellant being the Metropolitan Life Insurance Company, the judgment is therefore reversed. Hays, G. J., Tipton, Leedy and Ellison, JJ., concur: Gantt and Frank, JJ., dissent.